The Sunday Mail
Prof Simbi Mubako
In Africa, democratic elections are now very much in vogue.
With few expectations, every country on the continent conducts periodic elections in the full glare of the world, with elaborate and expensive internal safeguards against fraud and other unfair practices.
The objective is to ensure fair play in the ring and acceptability of the election result by the winners and losers.
Over the years, some countries have been more successful than others to the extent that national elections have become routine. In other states, elections are still the uncertain, dreaded ritual which often breeds quarrels and violence.
After the 2013 elections, many people thought Kenya had become one of the more successful countries where the rules of competitive elections as a method of selecting government had become settled.
But recent events show such hopes were premature.
I witnessed the 2013 elections as team leader of the Comesa observers.
We pronounced those elections fair, transparent and a valid expression of the people of Kenya.
Losing candidate Roila Doipiga challenged the result in terms of the constitution, but the Supreme Court easily dismissed the petition and endorsed the verdict of the Independent Electoral and Boundary Commission.
Five years later, I was again selected to lead the Comesa Observer Team.
I was in Nairobi in June 2017 as a member of the African Union team to assess Kenya’s preparedness for the August 8 elections.
The team was happy with voter registration and generally with the work of the IEBC.
We observed that the commissioners were new; the old members having been forced by the main opposition to stand down.
Likewise, there was a new Chief Justice at the Supreme Court.
We noticed also that since 2013, there had been as many as 200 cases in relation to elections.
The opposition had won most of the cases.
Technically, Kenyans were well-prepared for the elections as never before and had the advantage of having done it before and, hopefully, had learned from past mistakes.
When international observers began to gather a fortnight before election day, the atmosphere for a peaceful and fair election had become somewhat murky.
A top cyber security officer for the IEBC had been murdered.
The crime seemed to have been targeted at the election process, but no one knew how Chris Musando’s death would affect the electoral system.
Investigations were in progress, but no results had been announced by the end of polling.
The IEBC assured us that the integrity of the election would not be affected.
Secondly, the Nasa coalition also complained that one of their election offices was broken into and computers were stolen.
While troubling, these incidents did not necessarily negate the whole election process.
The Kenya elections were witnessed by thousands of local and international observers.
Some of the high-ranking international observers groups were the AU led by Mr Thabo Mbeki; the Commonwealth led by Mr John Mahama; the East African Community led by Professor Rugumayo; and Comesa, which I led.
The Carter Centre, led by Mr John Kerry; the European Union led by Ms Marietje Schaake, and other teams also observed the elections.
In all, hundreds of observers were deployed all over Kenya.
There was also a level of inter-group co-ordination and exchange of notes while each retained its independence.
The process of observation consisted of making contacts with all stakeholders before, during and after voting; watching voting and the tallying process at each polling centre.
The polling process ended without incident.
No serious complaint was recorded from any party until halfway through the tallying process as the results were being announced.
At about 3am on August 9, 2017, Nasa protested that the results – which showed President Uhuru Kenyatta leading by a substantial margin – were false and fraudulent.
They said their tallying showed Raila Odinga had already won and demanded he be declared winner.
The IEBC chair rejected the demand and went on with announcing official figures.
Nasa turned to international observers, urging us not to accept the official figures. The African observers’ initial reaction was to refuse to listen to Odinga’s delegation or any other delegation.
However, Mr Kerry persuaded us to meet Nasa leaders together and to listen to them.
At the joint observers meeting, the Nasa leaders submitted that the official results favouring Uhuru Kenyatta must be rejected on two grounds:
- That the results transmitted from constituencies to the national tallying centre were “cooked”; and
- That following Mr Musando’s death, the IEBC ICT system was open to hacking and was, in fact, hacked to produce false results against Nasa and Mr Odinga.
The IEBC rejected these objections out of hand.
International observers also refused to accept Nasa’s assertions as fact.
Unanimously, they advised Nasa leaders to follow the laid down election processes: (a) Lodge formal complaint with the IEBC to investigate and answer officially; or (b) If still not satisfied, proceed to the Supreme Court.
International observer groups proceeded to publish individual reports which all endorsed the elections up to that stage as credible, peaceful, free and fair.
Some possible improvements were pointed out, but no one observed fundamental errors to warrant nullifying the whole election process.
No one had observed any proof of the allegations made by Nasa, which could only be proved in a court of law.
However, at that point, Nasa leaders said they rejected the election result, but would not go to court this time.
This was a clear threat of violence.
On August 11, tallying was over and the IEBC announced the result of the presidential election.
As was then obvious, Mr Uhuru Kenyatta was elected president, with William Ruto his deputy.
They had obtained 8,2 million (54 percent) votes to Mr Odinga’s 6,7 million (45 percent) votes.
It was a victory by 1,5 million, a margin that seemed to leave no room for argument.
It must be remembered that the presidential election was harmonised with the election of governors, senators, national assembly members, women’s representatives and country representatives.
In the whole election, the trend of the result was the same.
Mr Kenyatta’s party led the opposition by a substantial margin of 58-63 percent. The numbers won by Mr Kenyatta’s party compared to Mr Odinga’s party were: governors 26:17; senators 24:19; National Assembly members 165:118; women’s representatives 25:16; and country representatives 28:19.
Mr Kenyatta had clearly increased his and his party’s popularity since 2013.
In 2013, he beat Mr Odinga by about 400 000 votes. This time it was 1,5 million votes.
Kenyans demonstrated that they did not blindly follow ethnic leaders.
Mr Kenyatta had campaigned on his government’s impressive development record since 2013: The newly-commissioned Mombasa/Nairobi railway; 7 000km of modern road; 92 referral hospitals; free maternity healthcare; waiver of examination fees for 1,5 million students; and extension of electricity to many rural areas.
It appeared Mr Kenyatta’s victory was unassailable.
Moreover, this time, the counting system had been tightened to the satisfaction of all parties. Polling stations had also been greatly increased to reduce length of queues. No polling station had more than 700 voters to handle.
Secondly, for the first time, Kenya deployed nationally what was called the Kenya Integrated Election Management System (KIEM Kit) to facilitate efficient voter registration, candidate registration, voter certification and results transmission.
The system worked well this time.
Thirdly, the courts had decided that the presidential poll results were to be announced at county level, only to be transmitted to the national tallying centre where the president-elect is declared by the IEBC chairman.
It was felt this system removed the possibility of the IEBC altering votes which came from constituency centres.
Therefore, the first step in determining the result of the presidential election was counting votes by the presiding officers at polling stations in full view of parties’ polling agents and local and international observers.
The presiding officer then filled the results of the count on Form 34A, which was signed and the countersigned by candidates’ agents.
Then the presiding officer keys the results into the KIEMS gadget, scans the 34A form and sends the two documents to the constituency returning officer and to the National Tallying Centre.
The constituency returning officer collated results from the Form 34As and recorded the aggregates of votes cast for each candidate on Form 34B.
Results were announced at constituency level and then submitted to the National Polling Centre; and that announcement was final.
Results from the 290 polling stations were collated at the National Tallying Centre from the Form 34Bs, and the results of the tally are recorded on Form 34C. The IEBC chair announced the results of the Presidential election on Form 34C.
There was little room for error or cheating.
In case of doubt, one can always go back to Form 34A which would have been countersigned by the party agents.
If Mr Odinga was disputing the final tally, this could be easily resolved by referring to Form 34As which his party agent had signed without complaint.
We had suspicion that was the real reason Mr Odinga’s party was reluctant to go to court. If his agents countersigned the figure, that would end the argument.
In the end, Odinga did go to court and the unexpected happened. He won his case.
The Supreme Court, by a majority of four to two, decided the election process was in breach of the electoral law and violated the constitution.
The court did not directly endorse Mr Odinga’s grounds of petition, but its reasons were devastating to the respondent’s case.
The court declared the Presidential election null and void, and ordered a fresh election by the two candidates who won the most votes; Messrs Kenyatta and Odinga.
(a) The court held that the IEBC failed to adhere to the constitution. It was not clear in what way it departed from the constitution; and
(b) That there were traceable procedural and administrative irregularities in terms of the electoral law, for instance, that some results were transmitted to the National Tallying Centre manually and not electronically.
However, the court did not spell out that any of the irregularities or inconsistencies were so fundamental as to negate the will of the Kenyan people.
It was not shown that the number of votes attributed to Mr Kenyatta were excessive or that Mr Odinga’s votes were suppressed, or that the arithmetic was materially faulty.
If the figures were indeed correct, why trample underfoot the will of 15 million Kenyans by nullifying the election?
As Justice Ojwanga, a dissenting opinion, stated, “There is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will which was recorded on 11 August, 2017.”
We respectfully concur.
Moreover, the main judgment only nullified the presidential election and not the election of governors, MPs etcetera.
If the IEBC did not follow the constitution in a fundamental way, the whole election should have been affected.
Targeting only the presidential election seems to indicate an impermissible level of arbitrariness.
Furthermore, the court ordered only the top two presidential candidates, Messrs Kenyatta and Odinga, to re-run on October 26.
It seemed irrational that in a repeat election some candidates should be excluded. The decision was subsequently successfully challenged on this point.
Inspite of these egregious faults, the Supreme Court decision to nullify the election of August 8 was hailed by some as a sign that Kenya was a mature democracy and as the first assertion of judicial independence in Africa. Chief Justice David Maraga was instantly canonised as the apostle of judicial independence.
Mr Odinga and his Nasa were ecstatic in their unexpected victory.
On the other hand, Mr Kenyatta strongly condemned the court, who called it an enemy of the people. While strongly disagreeing with the verdict, he undertook to comply with the order.
As such, two parties registered for the re-run of the election.
Mr Odinga entered the race with a number of conditions, including a demand for the replacement of the IEBC chair.
This had not been ordered by the court.
When that was rejected, Mr Odinga withdrew, leaving Mr Kenyatta to win with 98 percent of the votes cast.
The number of votes Mr Kenyatta received was roughly the same as he had received on August 8, 2017.
The final result went some way to vindicate the validity of the electoral process carried out by the IEBC and certified by agents of parties, including Nasa. It vindicated the unanimous declaration of the election observers that the election of August 8 was peaceful, free, fair and a true expression of the will of the people of Kenya.
In the end, the re-run was a monumental waste of effort and scarce resources. With a little humility and judicial restraint, all that could have been avoided.
President-elect Kenyatta and his deputy, Mr Ruto, were finally sworn in on November 28, 2017 with the usual pomp and ceremony, witnessed by nine foreign leaders and other government representatives.
Some former presidents also attended, including Mr Mbeki and Mr Mahama, who in August had led AU and Commonwealth teams respectively.
The notable absentee was Mr Odinga, who remained unappeased.
Mr Odinga has vowed to continue to contest President Kenyatta’s victory on the streets. Nasa’s protests have cost the nation 60 lives since August 9.
There is a continuing threat of violence, which has the potential to wipe out the nation’s faith in elections and in democracy itself.
For months, Nasa supporters have chanted “no Raila, no peace”.
With Mr Odinga threatening to publicly crown himself rival president, Kenyans must wonder if his supporters will still chant but keep the peace, or whether the national security red line will be crossed.
